How Can I Legally Protect Software Under Dutch Law?

Published on 19 October 2025 · Last updated 26 October 2026

Under Dutch law, software is protected mainly by copyright: computer programs are works under the Dutch Copyright Act (Auteurswet), protected automatically from creation (Article 10(1), point 12°). A patent is only possible for a technical invention, not for a computer program as such (Article 2 Dutch Patents Act 1995). Know-how can be protected as a trade secret (Article 1 Trade Secrets Protection Act). Our team also advises on copyright law in the Netherlands.

Legal protection of software under Dutch law requires a layered strategy where you combine multiple intellectual property rights. Your software contains various protectable elements: the creative code, technical functionality, confidential business information, and commercial features such as names and logos. Therefore, you examine which forms of protection best suit your specific situation.

The Dutch Copyright Act protects computer programs from the moment they are created, without registration or fees. For most software, copyright is therefore the baseline protection.

What Does Copyright Protect in Software Under Dutch Law?

Copyright automatically protects the specific source code and object code of your computer program as soon as you create it, including preparatory design materials such as flowcharts and technical designs that can lead to a computer program.

The Dutch Copyright Act lists computer programs and their preparatory material as works that can be protected (Article 10(1), point 12°). For protection, the program must have its own, original character and bear the personal stamp of its maker: its form must result from creative choices and may not be so banal or trivial that no creative work can be identified behind it (Hoge Raad 30 May 2008, ECLI:NL:HR:2008:BC2153 (Endstra), paras 4.3 and 4.5.1). Whether code meets this test depends on the creative choices made in writing it.

Key advantage: you need not file an application or complete registration. Protection arises automatically upon creating the code. Nevertheless, you wisely document all development steps, date them, and archive carefully. This demonstrates when, on what precisely, and with whom the copyrights originated.

However, copyright protection has limitations. It protects the expression of a program, not the ideas and principles behind it. A person who is entitled to use the program may observe, study and test how it works to discover those ideas and principles (Article 45l Dutch Copyright Act). Someone who copies your source code into their own program infringes your copyright. The functionality, programming language, algorithms and principles underlying your software, as such, fall outside protection. A competitor may therefore develop a comparable program with the same functionality, provided it writes its own code.

Who Owns the Copyright in Software Developed in the Netherlands?

The maker of the work, the person whose creative choices are reflected in it, is the copyright holder (Article 1 Dutch Copyright Act). For software made by employees, the rule is different. If the employee’s work consists in making such programs, the employer is treated as the maker, unless otherwise agreed (Article 7). A person under whose design, guidance and supervision a program is made is also treated as its maker (Article 6).

Article 7 only applies to work done in employment. It does not apply to freelancers, agencies or other contractors. For interns and others who are not clearly employees, do not rely on Article 7: agree a written transfer instead.

Between a client and a software developer, the copyright as a rule belongs to the developer as maker, unless the program was made to the client’s design and under its guidance and supervision (Article 6). The fact that you commission and pay for the development does not change this. Without a transfer, the developer remains the rightholder, and you may only use the software within the licence that was agreed or follows from the contract. A company that publishes a work as its own without naming any natural person as maker is treated as the maker, unless it is proven that the publication was unlawful (Article 8). That rule offers too little certainty to rely on.

Therefore agree in writing who will own the copyright. Since 1 January 2026, an agreement to transfer copyright, or to grant an exclusive licence, must be made in writing, and the transfer itself requires a deed (Article 2(3) Dutch Copyright Act). An oral promise that the rights will be yours is not enough. Alternatively, you can take a licence: the developer keeps the copyright and you receive the right to use the software. The special rules on copyright contracts with makers (Chapter Ia of the Act) do not apply to computer programs (Article 45n).

Agree in writing, before development starts, who will own the code and what the client may do with it.

When Does a Patent Protect My Software in the Netherlands?

A patent protects the technical functionality and inventive solution behind your software, provided it is new, inventive, industrially applicable, and has technical character extending beyond software as such.

Patent law can offer broader protection than copyright because it protects the technical invention itself, not just the code. Patents are available for inventions in all fields of technology that are new, involve an inventive step and are industrially applicable (Article 2(1) Dutch Patents Act 1995). However, computer programs as such are not regarded as inventions (Article 2(2)(c) and (3)). The door therefore remains open for computer-implemented inventions in which the software contributes to solving a technical problem.

A Dutch patent application is filed with the Netherlands Patent Office (Octrooicentrum Nederland) (Article 15(1) and Article 24(1) Dutch Patents Act 1995). A European patent, granted under the European Patent Convention, can also have effect for the Netherlands (Article 1). The software must meet strict requirements:

• Novelty: the invention may not form part of the state of the art, which is everything made available to the public before the filing date, by a written or oral description, by use or in any other way (Article 4)
• Inventive step: the invention may not be obvious to a person skilled in the art, having regard to the state of the art (Article 6)
• Industrial application: the invention can be made or used in any kind of industry, including agriculture (Article 7)
• Technical character: the claimed subject matter must be more than a computer program as such (Article 2(2)(c) and (3)); in practice, the software must contribute to a technical solution

A Dutch patent remains in force for at most twenty years from the filing date, unless it lapses earlier, for example because the annual fees are not paid (Article 36(6) Dutch Patents Act 1995). Copyright lasts much longer: 70 years after the death of the maker, or 70 years after first lawful publication if a company is treated as the maker (Articles 37 and 38 Dutch Copyright Act). A patent application also requires a substantial investment in official fees and in the fees of a patent attorney. Check the current official fees with the Netherlands Patent Office before you file.

In addition, the Netherlands Patent Office enters your application in the public patent register as soon as possible after eighteen months from the filing date or the earliest priority date, or earlier at your request (Article 31 Dutch Patents Act 1995). Competitors can then see your technical solution. If you prefer to keep it confidential, a trade secret may suit you better.

An example: software that recommends music based on emotion recognition may be patentable if it offers a new and inventive technical solution, for example in how the emotional responses are measured and processed. A standard webshop that combines existing techniques will usually not involve an inventive step.

A patent lets its holder stop others from making, offering, marketing or using the patented product, or applying the patented process, without consent (Article 53 Dutch Patents Act 1995). Unlike copyright, this also works against a competitor who developed the same solution independently, unless that competitor already used it in the Netherlands in its business on the filing date (prior use, Article 55(1)).

What Protection Do Trade Secrets Offer Under Dutch Law?

Trade secrets protect undisclosed knowhow and business information having commercial value, provided you take reasonable measures to keep information confidential according to the Trade Secrets Protection Act from 2018.

The Trade Secrets Protection Act (Wet bescherming bedrijfsgeheimen) regulates when information qualifies as trade secret and which enforcement measures you can take against infringement. For protection, your information must meet three conditions:

1. The information is secret: as a body or in the precise configuration and assembly of its components, it is not generally known among, or readily accessible to, persons within the circles that normally deal with that kind of information (Article 1(a) Wbb)
2. The information has commercial value because it is secret (Article 1(b) Wbb)
3. The person lawfully in control of the information has taken reasonable steps, under the circumstances, to keep it secret (Article 1(c) Wbb)

Trade secret protection fits elements of your software that you do not hand over to users, such as source code that runs only on your own servers, training data, model parameters and internal development methods. It does not stop others from studying a product they lawfully obtained: acquiring a trade secret by observing, studying, disassembling or testing a product that was made available to the public or is lawfully in their possession is not unlawful, unless they are bound by a valid duty to limit such acquisition (Article 3(1)(b) Wbb). Independent discovery is also lawful (Article 3(1)(a)).

For effective protection you implement technical, organizational and contractual measures:

• Confidentiality provisions: include explicit confidentiality clauses in employment contracts, commercial agreements and NDAs with business partners
• Access restriction: limit access to sensitive code and documentation to key figures within your organization
• Physical security: secure servers and development environments with access control
• Digital protection: use encryption, secured version control systems and access management
• Internal policy: establish clear policy regarding handling of confidential information

Without reasonable steps to keep the information secret, it is not a trade secret within the meaning of the Act (Article 1(c) Wbb), and you then depend mainly on contractual arrangements such as an NDA. Compared to copyright, a trade secret can also protect more abstract elements, such as a combination of formulas or specific development methods.

A software escrow arrangement offers additional certainty when you as client depend on a supplier. The supplier deposits the source code with an escrow agent. The escrow agreement between the supplier, the user and the escrow agent sets out when the code is released to you, for example if the supplier goes bankrupt or stops maintaining the software, and what you may then do with it. The costs are set by the escrow agent and depend, among other things, on how often the deposit is updated and whether it is technically verified. For cloud software, source code escrow alone is often not enough, because you also need access to the hosting environment and your data. For cloud services, consider a data or continuity escrow arrangement as well.

How Do I Protect the Trade Name and Trademark of My Software in the Netherlands?

Your company’s trade name receives automatic protection through use, but registration as trademark with the Benelux Office for Intellectual Property provides stronger legal protection for your software name and logo.

Besides technical software protection, you also protect your commercial identity. A trade name (handelsnaam) is the name under which a business is run (Article 1 Trade Names Act). Protection arises through use, not registration. Using a trade name that is identical or only slightly different from an older trade name is prohibited if this is likely to confuse the public, given the nature and location of both businesses (Article 5).

For stronger protection, also register your name as a trademark. A Benelux trademark right is obtained by registration (Article 2.2 Benelux Convention on Intellectual Property). Registration covers a specific territory, for example the Benelux, the European Union or other countries. A registered Benelux trademark lets you stop others from using an identical sign for identical goods or services, and an identical or similar sign for identical or similar goods or services if this creates a likelihood of confusion; a trademark with a reputation in the Benelux has wider protection (Article 2.20(2)).

Your trademark must have distinctive character and may not consist exclusively of descriptive indications (Article 2.2bis(1)(b) and (c) Benelux Convention). The name ‘Apple’ cannot serve as a trademark for apples, but can for computers and software. If your software product’s name or logo differs from your trade name, register it as a trademark as well. This helps prevent competitors from using the same product name.

Also consider design rights for the appearance of your software. A computer program itself is not a “product” for Benelux design law, but graphic symbols and typefaces can be (Article 3.1(4) Benelux Convention). Icons and elements of a user interface may therefore qualify if the design is new and has individual character (Article 3.1(1) and Article 3.3).

What Minimum Rights Does the Software User Have According to Dutch Legislation?

The Copyright Act contains specific provisions limiting software creator rights by granting users certain minimum rights. Without these rights, normal software use would constitute copyright infringement.

For software, reproduction includes loading, displaying, running, transmitting and storing the program, insofar as these acts require a reproduction (Article 45i Dutch Copyright Act). Unless otherwise agreed, the lawful acquirer of a copy may make the reproductions that are necessary for the intended use (Article 45j). A lawful user may make a back-up copy if this is necessary for the intended use (Article 45k), and may observe, study and test the program while using it (Article 45l). Decompiling the program is allowed only to achieve interoperability with an independently created program, under strict conditions (Article 45m).

Not all of these rights are mandatory. A licence can limit the reproductions needed for the intended use, but it cannot prohibit reproduction in the course of loading, displaying or correcting errors (Article 45j, second sentence). Articles 45k, 45l and 45m do not contain the words “unless otherwise agreed”.

Decompilation for interoperability is only allowed if the information is not already quickly and easily available, the acts are limited to the parts needed, and they are carried out by a lawful user or someone authorised by that user (Article 45m(1)). The information obtained may not be used for another purpose, shared with others unless necessary for interoperability, or used to develop a program that infringes the copyright (Article 45m(2)).

How Do I Choose the Right Protection Strategy in Dutch Law?

An effective protection strategy combines multiple IP rights and depends on your software type, business goals and budget for application procedures and enforcement.

Evaluate for your specific situation which combination offers optimal protection:

Copyright is the baseline protection for code that meets the originality test. It arises automatically without costs or procedures. However, it does not protect functionality or underlying ideas.

Patent is worth considering for technical solutions that are new and inventive. It can protect the invention itself, but the application is costly and is made public after about eighteen months (Article 31 Dutch Patents Act 1995).

Trade secret fits excellently for knowledge and information you prefer not to disclose publicly, such as specific algorithms or development methods. Requires active protective measures but avoids publication obligation.

Trade name and trademark remain essential for brand recognition and commercial protection, regardless of technical protection choice.

Example: a Layered Protection Strategy

Take a fictional software company in Amsterdam that develops an app for predictive maintenance in the process industry. It could use a layered protection strategy:

• Copyright: automatic protection of the source code and object code, insofar as original
• Patent: an application for the technical use of its prediction model, for example in controlling process equipment, if that use is new and inventive; a mathematical method as such is not an invention (Article 2(2)(a) and (3) Dutch Patents Act 1995)
• Trade secret: training data and specific parameter configurations remain secret through NDAs and access restriction
• Trademark registration: Benelux registration for the product name and logo

This strategy protects technical innovation through patent, implementation through copyright, knowhow through trade secret, and commercial identity through trademark law.

What Happens During Collaboration and Assignments Under Dutch Law?

In software development by multiple parties, ownership questions arise quickly. If several persons or companies jointly create a program and their contributions cannot be separated, they share one copyright. Each of them can enforce that copyright, unless otherwise agreed (Article 26 Dutch Copyright Act). Agree in writing how the co-owners may use and license the program.

If the contributions can be separated, for example the graphical interface and the underlying database code, each maker keeps the copyright in their own part. The person under whose guidance and supervision the whole was made, or otherwise the person who combined the parts, is treated as the maker of the whole (Article 5(1)).

Problems regularly arise upon dissolution of collaborative arrangements such as general partnerships. When one party contributes software for subsequent exploitation by the partnership, this often generates disputes after dissolution about who retains which rights. Therefore make written agreements in advance about ownership relationships and what happens with rights after termination of collaboration.

For software partially consisting of open source components, specific license terms apply. Some open source licenses require derivative works also be published under the same open source license. Thoroughly investigate which open source components you use and what license terms precisely permit. Have the licensor possibly indemnify against third-party claims.

Frequently asked questions about protecting software under Dutch law

How can I protect software under Dutch law?

Through a combination of rights. Copyright protects original code automatically (Article 10(1), point 12°, Dutch Copyright Act). A patent is possible for a technical invention, but not for a computer program as such (Article 2 Dutch Patents Act 1995). Know-how you keep secret can be a trade secret (Article 1 Trade Secrets Protection Act), and a trademark protects the product name (Article 2.20 Benelux Convention on Intellectual Property).

Who owns the copyright in software made by a freelancer or an employee?

A freelancer or agency as a rule owns the copyright, unless the program was made to the client’s design and under its guidance and supervision (Article 6 Dutch Copyright Act) or the copyright is transferred by a written agreement and a deed (Article 2(3)). An employer is treated as the maker if making such programs is part of the employee’s work, unless otherwise agreed (Article 7).

Can software be patented in the Netherlands?

Not as such. Computer programs as such are not regarded as inventions (Article 2(2)(c) and (3) Dutch Patents Act 1995). A computer-implemented invention that is new, inventive and industrially applicable can be patented. A Dutch patent lasts at most twenty years from filing (Article 36(6)).

What does the Wet bescherming bedrijfsgeheimen protect?

The Dutch Trade Secrets Protection Act protects information that is secret, has commercial value because it is secret and is subject to reasonable steps to keep it secret (Article 1). It does not protect against independent discovery or against studying a product that was lawfully obtained (Article 3(1)(a) and (b)).

What does software escrow cost, and how does it protect me?

Dutch law sets no tariff: the escrow agent sets its fees, which depend on, among other things, how often the code is deposited and whether it is verified. The protection follows from the escrow agreement, which states when the source code is released to you and what you may then do with it.

Primary sources

• Dutch Copyright Act (Auteurswet), current text since 1 January 2026: Articles 1, 2, 5, 6, 7, 8, 10, 26, 37, 38, 45i, 45j, 45k, 45l, 45m and 45n
• Dutch Patents Act 1995 (Rijksoctrooiwet 1995): Articles 1, 2, 4, 6, 7, 15, 24, 31, 36, 53 and 55
• Dutch Trade Secrets Protection Act (Wet bescherming bedrijfsgeheimen): Articles 1 and 3
• Benelux Convention on Intellectual Property (BVIE): Articles 2.2, 2.2bis, 2.20, 3.1 and 3.3
• Dutch Trade Names Act (Handelsnaamwet): Articles 1 and 5
• Hoge Raad 30 May 2008, ECLI:NL:HR:2008:BC2153 (Endstra), paras 4.3 and 4.5.1

When Should I Engage Legal Expertise in the Netherlands?

Software protection requires specialized knowledge of multiple legal fields. Engage a specialized ICT lawyer or patent attorney for:

• Contractual agreements for software development by third parties – ensure copyrights are explicitly transferred
• Patent strategy – determine whether your innovation meets requirements and whether investment justifies protection advantages
• Trade secret policy – implement legally watertight measures enabling successful invocation of Trade Secrets Protection Act
• Infringement matters – when third parties unlawfully use your software or when you receive claim for alleged infringement

Do you want legal certainty about your software protection? Our specialized lawyers analyze your specific situation and advise on optimal protection strategy for your intellectual property. Contact our law firm for personal legal advice regarding your software rights.

A proactive approach prevents costly disputes. Invest upfront in clear contracts, careful documentation and targeted protective measures. This provides the legal foundation to effectively exploit and defend your innovation against unauthorized use.